FAQs About Appealing For A Special School

1. “HOW DOES A LOCAL AUTHORITY (LA) NAME A SCHOOL IN AN EHC PLAN?” When a LA finalises or amends a Statement of SEN (Statement)/EHC plan the name of the school, type of school or other appropriate placement will be recorded in Part 4 of the Statement/Section I of the EHC plan. The LA will have already considered any representations from parents or young people regarding the Proposed Statement/draft EHC plan, including the parents' or young person's preference for a school. This may be a maintained school (i.e. state school) but may also be an ‘independent’ or ‘non-maintained’ school. It may also be for a mainstream school or a special school.2. “WHAT IS ‘INCLUSION’?” The law states that a LA has a duty to educate children and young people with SEN in local mainstream schools unless that is incompatible with the wishes of the child’s parents or young person, the provision of efficient education for others or the ‘efficient use of the LA’s resources’ (and that there are no reasonable steps that can be taken to prevent the incompatibility). This is often referred to as ‘inclusion’. The wider principle of inclusion is that children or young people with SEN have the right to be educated in mainstream schools rather than special schools.3. “WHAT ARE INDEPENDENT/NON-MAINTAINED SPECIAL SCHOOLS?” An independent school is run privately for profit whereas a non-maintained school is run 'not for profit' usually by a charitable body. Independent and non-maintained schools are not dependent upon government funding so are fee-paying. It will generally be more expensive for an LA to fund a placement at these schools than in one of their own maintained schools. 4. “DO PARENTS HAVE A RIGHT TO EXPRESS A PREFERENCE FOR A SCHOOL?” Parents have a right in law to express a preference for a school when a Statement/EHC plan is first made or is later amended. LAs often refuse to name an independent or non-maintained school in a child's Statement/EHC plan by arguing that their own maintained school can adequately meet the child's needs. Depending on the needs of the child, the LA’s proposed school might be either a special school or a mainstream school that can offer additional support in the school itself or in an attached ‘unit’.5. “WHAT IF I AM REQUESTING A MAINTAINED SPECIAL SCHOOL?” Where parents wish to change the name of the school on their child’s Statement to a maintained school (either mainstream or special) then, provided:

It is not within a year of the last time that parents asked; or

It is not within a year since the Statement/EHC plan was last amended or finalised; or

It is not within a year of an appeal to the SEND Tribunal,

...the parents may write to the LA to request the name of the school to be changed. The LA then has eight weeks in which to consider whether or not to comply with the request. If the request is refused, parents will be given a right to appeal to the SEND Tribunal within two months of the decision letter.

However, this kind of appeal can only be about the school named in Part 4/section I, not anything in Parts 2 and 3/sections B and F. This right of appeal is therefore not used often, as parents will usually have a stronger case to change the named school if they also ask for changes to Parts 2 and 3/sections B and F.6. “WHAT IF I AM REQUESTING AN INDEPENDENT/NON-MAINTAINED SPECIAL SCHOOL?” Unfortunately, there are difficulties where parents wish to change the name of a school to an independent or non-maintained school. In these cases, although parents can still request a change of school in the normal way, parents will not get a right to appeal against the LA’s refusal to comply with any request. 7. “CAN I APPEAL AGAINST THE LA’S REFUSAL TO NAME MY PREFERRED SCHOOL?” Parents can appeal to the FtT against the LA’s refusal to name their preferred school after one of the following:

The Statement or EHC plan being finalised (when first issued or if later amended. The Statement or EHC plan should be amended at a ‘phase transfer’, i.e. a change of school to primary, secondary or post-16 placement).

An annual review.

8. “WHAT IS ‘UNREASONABLE PUBLIC EXPENDITURE’?” LAs do not normally say that the school preferred by parents or a young person cannot meet an individual's needs, but rather, they say that naming an independent or non-maintained school will amount to 'unreasonable public expenditure'. They may also argue that any additional provision they may have to provide at their own (or another LA’s) maintained school is far cheaper for them. 9. “IS THERE ANYTHING ELSE THE TRIBUNAL WILL ALSO CONSIDER ABOUT COSTS?”A FtT panel hearing an appeal is obliged to look at the comparative costs of the competing placements. The effect of the 'Oxfordshire' judgment was to allow LAs to lawfully discount the costs of a placement at their own maintained special school (and sometimes even a maintained mainstream 'unit') because they fund the placements on a 'whole-school' basis rather than for each individual pupil that they place there. Therefore, they can argue that, theoretically, it will not cost them very much (or even nothing at all) to place the child there. 10. “WHAT DO THE LA NEED TO PROVE?” The LA will need to prove that their own maintained (either mainstream or special) provision can adequately meet all of the child's or young person's needs, as set out in their Statement/EHC plan - LAs are only obliged to provide children and young people with an ‘adequate’ education, not the ‘best’). Parents and young people may often then find themselves losing the appeal on this point alone, because they are often unable to bridge the financial gap between the two placements. Young people and parents, therefore, can often only win an appeal if they can show that the LA's school cannot (or may not be able to) meet their, or their child's needs, even if additional support is provided, or if they can show that the financial figures that the LA has presented are wrong and that the costs are in fact similar.

By Douglas Silas

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